On July 26, 2016, FDA issued an updated warning on beauty products, warning consumers to avoid certain “skin creams, beauty and antiseptic soaps, and lotions,” particularly those boasting “anti-aging” or “skin lightening” benefits, as potentially containing mercury.  While the dangers of mercury exposure are well-known, mercury’s ubiquity in certain beauty products is not.  Products that claim to “remove age spots, freckles, blemishes, and wrinkles,” including products targeting teenagers enduring acne, may contain mercury.  Checking the label can help—look out for words like “mercurous chloride,” “calomel,” “mercuric,” “mercurio,” or of course, “mercury”, but it’s not fool-proof.  As FDA points out, many of these beauty products are often made abroad and can be sold illegally in the U.S., without any labels. FDA continually monitors products like these, but is unable to catch all of them, especially due to their dubious channels of trade.  For those that FDA does catch, FDA sets up an import alert to prevent future influxes of such products.  Check here for all Consumer Updates from FDA.  Thus, retailers should do their due diligence to know what the chemical content is of the products they sell beyond the labels.

In its warning, FDA again mentioned one of its growing complaints levied against cosmetics – that the product may actually be an unapproved new drug under the law. Continue Reading Beauty with a Side of Mercury?

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While a study hardly seems necessary to confirm it, an article published in the Journal of Global Fashion Marketing reports that of 289 cosmetics ads surveyed, only 18% could be viewed as generally trustworthy. While some may view this finding to be mere common sense, others – particularly plaintiffs’ counsel looking for potential class action claims – may view cosmetics as the next frontier after food labeling. After all, for an attorney with a “natural claim” lawsuit or similar complaint already drafted, the possibility of repurposing a ready-made legal formula may be highly appealing. Might cosmetics claims become the target of a new wave of false advertising litigation, akin to the “food wars”?

Continue Reading Is Makeup About to Get Ugly? Plaintiffs’ Counsel May See the High Promises of Some Cosmetics Advertisements as a Source of Litigation

128021458Perusing the labels at your typical cosmetics counter or pharmacy aisle can feel akin to reading the menu of options for a smoothie bar.  “Antioxidants,” “Aloe,” “Vitamin C,” “Almond extract,” “natural fruit,” and “protein” all appear to be popular options.  When it comes to specifics, labels often vary from saying that an ingredient is contained in the product to simply splashing the ingredient name in bold font, unmodified.

Why does this matter from a legal stand point?  Just like any other advertising claim, claims about product content require reasonable substantiation, and must not be misleading.  The risk in touting a particular product ingredient is often less about whether the claim is literally true, and more about whether it implies a greater amount or performance impact than actually provided.

The highly publicized POM Wonderful LLC v. Coca-Cola Co. case put ingredient claims in the spotlight when POM Wonderful challenged Coca-Cola’s use of the use of the words “Pomegranate Blueberry” on its juice label when the product contained only 0.3 percent pomegranate juice and 0.2 percent blueberry juice.  The United State Supreme Court overturned a lower court ruling, and found that POM Wonderful could proceed with its Lanham Act claims. The case was remanded back to the Ninth Circuit where it remains pending – meaning a little ingredient claim may give rise to big money litigation. (For more background on the POM Wonderful caseclick here.)

So far, like in POM Wonderful, food products have been the primary target of legal challenges, but nail care products and tanning cream have been the subject of competitor challenges based on the effectiveness of the publicized ingredients, and shampoo and sunscreen have been the target of “natural” claims litigation based on their contents.  In-house counsel for cosmetics and personal care companies should take note.  If your company’s called-out ingredients are called out, can you stand behind how much cucumber is in your eye cream?